Baroness Kennedy of Cradley:

Moved by Baroness Kennedy of Cradley

104FC: After Clause 172, insert the following new Clause—“Section 6 of the Sexual Offences Act 1956: removal of time limitation(1) Proceedings for the offence under section 6 of the Sexual Offences Act 1956 (intercourse with a girl between thirteen and sixteen) are not barred only by virtue of the passage of time since the date of the alleged offence.(2) Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”

My Lords, men who seduced girls between the ages of 13 and 16 before 1 May 2004 are effectively immune from prosecution because of a procedural time limit. The law therefore stops historic child abusers from being held accountable for their actions; the law denies justice to women in England and Wales who were groomed for sex as teenage girls before 1 May 2004 as they cannot bring charges against the people who took advantage of them. Let me take a minute to explain why.

Abusers are immune from prosecution because sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, and there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.

Amendment 104FC would remove the time limit and therefore remove the legal barrier which protects abusers of underage girls from prosecution. Some may read this speech and question why I am using the phraseology “girl” and not “child”. This is because, remarkably, the time limit applies only to girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. How can the law deny justice and discriminate in this way, and this House not seek to put it right?

The time limit has to be removed, especially as no such time limit applies to offences of this nature committed after 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003, where no equivalent time limit is applied. This time limit is therefore a procedural anomaly that clearly stands in the way of justice.

This problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse. But in 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who argued that his charge of indecent assault was a device to circumvent the time limit and was an abuse of the court—and the House accepted his argument. Since that time, therefore, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004 have been immune from prosecution.

Some may say that this may be an unnecessary change and ask how many people it would actually affect—but, as the CPS does not keep a record of how many cases are discounted at an early stage because of issues like time limits, there is no data for us to know whether this is affecting one woman, 1,000 women or more. What we do know is that, sadly, historic sexual abuse comes to light all too frequently. We know that girls can be threatened into silence for long periods of time. It is well known that very many girls, victimised in these ways, only recognise themselves as victims, or only have the confidence to go to the police much later than one year afterwards, or something else comes to light that encourages them to bravely break their silence. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004, but those victims for various reasons never told the police during the year.

I do not believe that we should need much evidence of the extent of the problem to justify the removal of this arbitrary time limit and allow justice to be done. Some may argue that you cannot retrospectively make law in this way, but applying that argument to this amendment I believe is incorrect. It is true that you cannot retrospectively create new offences and punish people for them—but here, the relevant offence always existed. This amendment would just change the rules relating to trial for those offences. It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Article 7 of the European Convention on Human Rights, as I understand it, applies to the definition of offences and defences; it does not apply to matters of procedure, including time limits.

Finally, some may argue that this amendment risks exposing those who were prosecuted and successfully used the time limit to avoid prosecution to further conviction. That is not my intention with this amendment, which is why subsection (2) of my proposed new Clause states:

“Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”

I am aware that that this is a complex matter, and I thank Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who has been arguing for a change in the law to address this issue for many years. I thank him for all his advice and support on this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for meeting Dr Rogers and me last week to discuss this matter. We are conscious that our meeting lasted twice as long as expected, so I thank him for the time that he gave and for the further discussions that were facilitated between Dr Rogers and the Civil Service team. However, my view remains that this issue needs resolving; there are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. This time limit is wrong —the amendment would remove it and, in doing so, close a loophole which protects sex offenders. I beg to move.

My Lords, I support my noble friend, who is quite right in everything she has said. Sexual abuse and rape can quite often take decades to come to light. The anomaly, which she has outlined very clearly, is within the power of the Government to put right, and I urge the Minister to do so.

My Lords, before I turn to this Amendment, I begin with an apology. I made an incorrect statement in an earlier group. On Amendment 104B, I said that in September 2019, we rolled Section 28 out to a further four courts” and then I identified them. I should have said “September 2021”, not “September 2019”. I have already sent a written note to the noble Lord, Lord Ponsonby of Shulbrede, correcting the point, but I take this opportunity to correct the record and apologise to the House for that error.

I thank the noble Baroness, Lady Kennedy of Cradley, for tabling the amendment, which is aimed at a narrow but important category of cases that remain subject to a highly unusual time limit—we do not usually have time limits in our criminal law—and I thank her for the very useful discussions that we have been able to have on this topic. The amendment affects offences under Section 6 of the Sexual Offences Act 1956 of unlawful but consensual sexual intercourse with a girl aged 13 to 15 that were committed before 1 May 2004, when the Sexual Offences Act 2003 came into force and replaced the 1956 Act. It was a requirement under the earlier statute that a prosecution for this under Section 6 had to be commenced within 12 months of the offence. There is no time limit for the offences under the 2003 Act that have been chargeable since 1 May 2004, but when the offence was committed before that date, the 12-month limit for commencing a prosecution continued to apply. That, of course, has long since expired.

As my noble and learned friend Lord Stewart of Dirleton explained in Committee, Parliament usually acts on the principle of non-retroactivity. Although removing the time limit in circumstances where a prosecution was already time-barred would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, it still would have exposed a person to criminal liability where there had not been any before.

When this matter was touched on in the House of Lords case referred to by the noble Baroness—R v J, 2004, UKHL 42—Lord Steyn simply observed without further comment:

“The change in the law is, of course, not of retrospective effect.”

The question now is whether it would be right, 18 years later, to legislate to render the time bar ineffective. The Government’s position has been that it would not be right, although I accept that we are not talking about making illegal something that was legal at the time; we are talking about removing a time bar with retrospective effect. However, there is more than one view on this subject. The contrary view was expressed clearly by the noble Baroness in support of her amendment. I am grateful to her for our discussions last week and for bringing along Dr Jonathan Rogers of Cambridge University, who really illuminated the discussion. He has written several important and helpful articles on this point; they repay careful reading.

It is fair to say that the position as regards the ECHR points is somewhat unclear. The question was expressly left open by the Strasbourg court in the case of Coëme and others v Belgium in 2000. Dr Rogers has argued that, in fact, the ECHR itself imposes a positive obligation on the Government to lift the time bar that would otherwise prevent prosecutions for this offence.

More recently, a case in the European Court of Human Rights called Antia reported in 2020. It is not particularly easy to follow but the interpretation on the court’s website suggests that the retrospective removal of a bar to prosecution might be in breach of Article 7 of the convention. The question is: can you retrospectively adversely affect the rights of defendants to give effect to the rights of victims? I accept that Antia is not conclusive as the offence was against the state, which cannot itself be a victim in convention law.

I hope it is clear from what I have said, if noble Lords are still with me on this, that this is a question involving complex but important legal issues—and one on which, it is fair to say, a variety of legal views can reasonably be held. Bearing in mind, therefore, that we are on Report, the Government’s position is that this issue would benefit from further consideration outside the time constraints of this Bill. I will ensure that it is given suitable consideration; I am happy to continue the discussions with the noble Baroness and Dr Rogers. On the understanding that it will be reconsidered and continually considered, I urge the noble Baroness, Lady Kennedy, to withdraw her amendment.

My Lords, I am grateful to the Minister for his response and for the large amount of time last week that he and his advisers gave me and Dr Rogers from Cambridge University, whose writing, as the Minister said, has rightly put this issue into the public arena.

I note the Government’s concerns about Article 7, but I also note that Governments have taken greater risks with Article 7 before when the political will has been there. I believe that there is cross-party consensus that men who continually seduced underage girls, in many cases ruining their young lives for their own amusement, in the 1980s and 1990s still deserve to be punished.

There is also Strasbourg case law, which condemns states for relying on arbitrary procedural rules that act as barriers to effective justice in cases of sexual offences against the young. My noble friend Lady Chakrabarti referred to one such case in Committee. However, as the Minister suggests, we should pause to consider whether Article 7 might protect a man who would be prosecuted after the original time limit expired. The European Court of Human Rights in Strasbourg has expressly said that the propriety of this is yet to be decided; on that basis, I accept that there is a risk that merits further consideration. I appreciate that this needs more time to resolve than the timing of the Bill allows. I therefore very much welcome the Minister’s offer to keep the discussions on this issue going with the Minister who is directly responsible for this area of policy. Today is only the start of the discussion on this issue.

I remain hopeful that, through discussion with the Government, more can be done to quantify the exact risk of losing a case under Article 7. If it is low, I hope that we will have the courage of our convictions and change the law for the better, as we did with the Double Jeopardy rules in 2003. I am grateful to the Minister for his offer to facilitate further deliberations on this issue; I look forward to future discussions with him and other Ministers.

I beg leave to withdraw my Amendment.

Amendment 104FC withdrawn.